Insanity plea by Holmes holds risks for both sides

FILE - James Holmes, Aurora theater shooting suspect, sits in the courtroom during his arraignment in Centennial, Colo., in a Tuesday, March 12, 2013 file photo. Holmes' lawyers plans to ask a judge on Monday, May 13, 2013 to enter a plea of not guilty by reason of insanity, a move that is widely seen as Holmes' best hope of avoiding the death penalty. (AP Photo/Denver Post, RJ Sangosti, Pool, File)

CENTENNIAL, Colo. (AP) - One of James Holmes' lawyers asked a judge on Monday to change his plea to not guilty by reason of insanity in the Colorado theater shootings. Such a plea is seen as his best hope of avoiding the death penalty in the killings of 12 people at a packed midnight showing of "The Dark Knight Rises" in Aurora. Changing the plea still carries risks for Holmes but moving in that direction now allows them to challenge some of the problems they see with Colorado's laws on insanity and the death penalty.

PREVIOUS PLEA:

The first judge in the case entered a not guilty for Holmes in March after his lawyers said they weren't prepared to enter one yet. He said Holmes could change it later. The current judge, Carlos Samour, said Monday that allowing the change would be "consistent with fairness and justice," but he wants to consider those constitutional objections raised by the defense before deciding whether to accept a new plea.

WHY CHANGE:

Defense lawyers fear a wrinkle in Colorado law could cripple their ability to raise his mental health as a mitigating factor during the sentencing phase. They question the constitutionality of that law. Both the first judge and Samour have previously refused to rule on its constitutionality, saying the attorneys' objections were hypothetical because Holmes had not pleaded insanity. Samour will take those up now but isn't expected to announce his ruling until May 31, when another hearing is scheduled.

OTHER RISKS FOR THE DEFENSE:

Holmes would have to submit to a mental evaluation by state-employed doctors, and prosecutors could use the findings against him.

RISKS FOR THE PROSECUTION:

Prosecutors would have to convince jurors beyond a reasonable doubt that Holmes was sane. If they don't, state law requires the jury to find him not guilty by reason of insanity. If acquitted, Holmes would be committed to the state mental hospital indefinitely.

MENTAL EVALUATION:

The mental evaluation could take weeks or months. Evaluators will interview Holmes, his friends and family, and if Holmes permits it, they'll also speak with mental health professionals who treated him in the past. Evaluators may give Holmes standardized personality tests and compare his results to those of people with documented mental illness. They will also look for any physical brain problems.